Upper Tribunal (Immigration and asylum chamber), 2022-03-22, [2023] UKUT 00076 (IAC) (Kutbuddin & Ors. (Regulation 9, EEA Regulations, Lawful Residence))
| Judge | Upper Tribunal Judge Bruce |
| Status | Reported |
| Published date | 21 March 2023 |
| Date | 22 March 2022 |
| Hearing Date | 30 September 2021 |
| Appeal Number | [2023] UKUT 00076 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Regulation 9, EEA Regulations, Lawful Residence |
UT Neutral citation number: [2023] UKUT 00076 (IAC)
Kutbuddin (Reg 9; EEA Regs; lawful residence)
Upper Tribunal
(Immigration and Asylum Chamber)
Heard at: Manchester Civil Justice Centre
THE IMMIGRATION ACTS
Heard on 30 September 2021
Promulgated on 22 March 2022
Before
UPPER TRIBUNAL JUDGE BRUCE
Between
Shabbir Kutbuddin
Fatema Arsiwala
Munira Shabbir Kutbuddin
Batul Shabbir Kutbuddin
(no anonymity direction made)
Appellant
and
Secretary of State for the Home Department
Respondent
For the Appellant: Mr C. Holmes, Counsel instructed by Parkview Solicitors
For the Respondent: Mr P. Deller, Senior Home Office Presenting Officer
The requirement that an EFM must show prior lawful residence in another member state is not a requirement of EU law, nor is it endorsed by the CJEU.
DECISION AND REASONS
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The Appellants are nationals of India who are respectively a husband, wife and their two daughters. They appeal with permission against the decision of the First-tier Tribunal (Designated Judge McClure) to dismiss their linked appeals under the Immigration (European Economic Area) Regulations 2016. It is the Appellants’ case that they qualify for a residence card under the Surinder Singh provisions in Regulation 9 thereof.
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The background, very shortly put, is that the Appellants lived for some time in Ireland with a British sponsor who was there exercising free movement rights. That Sponsor is the first Appellant’s brother. Now the whole family have returned to live in the UK. The Respondent does not challenge the assertion that the Sponsor was working in Ireland as claimed; nor has she put in issue the claim that the Appellants are his ‘extended family members’. The sole matter in issue arises under Regulation 9 (1A)(b) and is put in the refusal letter like this:
“For extended family members to qualify under regulation 9 they must demonstrate that they resided in an EEA member state with their British Citizen sponsor and the residence had been lawful. This means you must provide evidence that you were issued with an EEA residence card during your residency in Ireland as the extended family member of your British citizen sponsor or had been granted leave in Ireland under Ireland’s own domestic immigration rules”
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Before the First-tier Tribunal the Appellants argued that there was no requirement in EU law for their residence in Ireland to have been “lawful” in the sense that it is described in that passage. In the alternative they argued that their residence was lawful, since they had entered the country in possession of valid visit visas. The First-tier Tribunal rejected both propositions and dismissed the appeal.
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These appeals first came before the Upper Tribunal on the 6th January 2021. That hearing was adjourned so that the Secretary of State could consider her position. The difficulties caused by the pandemic meant that this position statement was not available until the 4th August 2021. The hearing could not then be listed until the 30th September 2021. I am grateful to both Mr Holmes and Mr Deller for their hard work prior to the hearing, and their helpful submissions on the day.
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Before I address the grounds of appeal it is convenient to here record some matters that were not in issue.
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The first is that there are valid appeals before me, the refusal letters containing express concessions to that effect. The only ground of appeal is set out in Schedule 2 to the 2016 Regulations:
1. The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal [against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal)—
section 84 (grounds of appeal), as though the sole permitted ground of appeal were that the decision breaches the appellant's rights under the EU Treaties in respect of entry to or residence in the United Kingdom (“an EU ground of appeal”);
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The second is that the UK’s withdrawal from the European Union has no consequence to the appeals before me, since the appeal was lodged prior to withdrawal day: see Paragraph 5(1)(a) of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309).
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The third is that despite the UK’s withdrawal from the European Union the Appellants will achieve a substantive benefit if they succeed: although Mr Deller was not aware, at the date of the hearing, what the precise form of that benefit might be, he gave an undertaking that there would be a “work around” reflecting the outcome of the appeals.
The Matter in Issue
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Regulation 8 defines an ‘extended family member’ of an EEA national:
“Extended family member”
8.—(1) In these Regulations “ extended family member ” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—
(a)the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations “relevant EEA national ” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).
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At the date of decision Regulation 9 read as follows:
“Family members [and extended family members] of British citizens”
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.
(1A) These Regulations apply to a person who is the extended family member (“EFM”) of a BC as though the BC were an EEA national if—
(a) the conditions in paragraph (2) are satisfied; and
(b) the EFM was lawfully resident in the EEA State referred to in paragraph (2)(a)(i).
(2) The conditions are that—
(a) BC—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F [or EFM] and BC resided together in the EEA State;
(c) F [or EFM] and BC’s residence in the EEA State was genuine.
(d) either—
(i) F was a family member of BC during all or part of their joint residence in the EEA State;
(ii) F was an EFM of BC during all or part of their joint residence in the EEA State, during which time F was lawfully resident in the EEA State; or
(iii) EFM was an EFM of BC during all or part of their joint residence in the EEA State, during which time EFM was lawfully resident in the EEA State;
(e) genuine family life was created or strengthened during [or EFM and BC’s] joint residence in the EEA...
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